No. B vs. Stephen N. Roberts SBN Martin A. Mattes SBN Mari R. Lane SBN NOSSAMAN LLP. 50 California Street 34th Floor

Transcription

1 0 No. B IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX Plaintiff and Appellant vs. CASITAS MUNICIPAL WATER DISTRICT CASITAS MUNICIPAL WATER DISTRICT COMMUNITY FACILITIES DISTRICT NO OJAI ALL PERSONS INTERESTED IN THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT RESOLUTIONS NOS AND ET AL Defendants and Respondents. On Appeal from the Ventura County Superior Court No CU-WM-VTA The Honorable Kent M. Kellegrew APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT AND AMICUS CURIAE BRIEF. OF PARK WATER COMPANY IN SUPPORT OF APPELLANT Stephen N. Roberts SBN Martin A. Mattes SBN Mari R. Lane SBN NOSSAMAN LLP 50 California Street 34th Floor San Francisco CA Tel Fax mmattes@nossaman.com Attorneys for Amicus Curiae Park Water Company

2 No. B IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX GOLDEN STATE WATER COMPANY Plaintiff and Appellant vs. CASITAS MUNICIPAL WATER DISTRICT CASITAS MUNICIPAL WATER DISTRICT COMMUNITY FACILITIES DISTRICT NO OJAI ALL PERSONS INTERESTED IN THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT RESOLUTIONS NOS AND ET AL Defendants and Respondents. On Appeal from the Ventura County Superior Court No CU-WM-VTA The Honorable Kent M. Kellegrew APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT AND AMICUS CURIAE BRIEF. OF PARK WATER COMPANY IN SUPPORT OF APPELLANT Stephen N. Roberts SBN Martin A. Mattes SBN Mari R. Lane SBN NOSSAMAN LLP 50 California Street 34x Floor San Francisco CA Tel Fax Attorneys for Amicus Curiae Park Water Company x1

3 No. B IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX GOLDEN STATE WATER COMPANY Plaintiff and Appellant vs. CASITAS MUNICIPAL WATER DISTRICT CASITAS MUNICIPAL WATER DISTRICT COMMUNITY FACILITIES DISTRICT NO OJAI ALL PERSONS INTERESTED IN THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT RESOLUTIONS NOS AND ET AL Defendants and Respondents. On Appeal from the Ventura County Superior Court No CU-WM-VTA The Honorable Kent M. Kellegrew APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT S Park Water Company Park Water through its attorneys and pursuant to the California Rules of Court Rule subdivision c respectfully applies for leave to file the following amicus curiae brief in support of Appellant Golden State Water Company Golden State. r 1. Identity and Interest of Amicus Curiae Park Water is an investor-owned water utility service provider subject to the jurisdiction of the California Public Utilities Commission CPUC. As a water service provider whose prospective business interests may be impaired by an order of this court l r v1

4 sustaining the decision of the trial court in this case Park Water has a unique interest in 0 the issues in this case and seeks to assist in the proper resolution of this case by informing the court of its support for the arguments presented in Appellants Opening Brief filed with this court on September Park Water has a unique interest in the issues as they relate to the valuation of an ongoing business. Park Water values its business enterprise as a going concern and not simply the sum of the value of its tangible assets. The court should consider that perspective in assessing the legal issues in this case. Park Water is familiar with the facts of this case the questions involved and the scope of parties presentations to date and is qualified to assist the court in determining whether the Casitas Municipal Water District Casitas MWD a public water agency by creating a community facilities district pursuant to Government Code et seq. the Mello Roos Act is authorized to acquire all of the assets of a public water system serving the City of Ojai that is owned and operated by Golden State which is an issue presented in the above-referenced. case before this honorable court. 2. Funding and Authorship Pursuant to California Rules of Court rule subdivision c3 Park Water asserts that no party or counsel for a party in the pending appeal authored this proposed. amicus brief or any part of it nor did they make any monetary contribution to fund the preparation or submission of the brief. Park Water is the only entity that funded the preparation and submission of this application and proposed amicus brief v1 2

5 3. Conclusion For the reasons set forth above amicus curiae Park Water respectfully requests that the court accept the brief below for filing and consideration in this appellate proceeding. Dated January NOSSAMAN LLP By Ma in A. Mattes Attorneys for Amicus Curiae Park Water Company v1

6 No. B IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX GOLDEN STATE WATER COMPANY Plaintiff and Appellant vs. CASITAS MUNICIPAL WATER DISTRICT CASITAS MUNICIPAL WATER DISTRICT COMMUNITY FACILITIES DISTRICT NO OJAI ALL PERSONS INTERESTED IN THE VALIDITY OF CASITAS MUNICIPAL WATER DISTRICT RESOLUTIONS NOS AND ET AL Defendants and Respondents. On Appeal from the Ventura County Superior Court No CU-WM-VTA The Honorable Kent M. Kellegrew AMICUS CURIAE BRIEF OF PARK WATER COMPANY IN SUPPORT OF APPELLANT v1

7 TABLE OF CONTENTS 1. INTRODUCTION... II. ARGUMENT... III. CONCLUSION... 2 RULE 8.204C1 CERTIFICATION. ý. i v1

8 TABLE OF AUTHORITIES Pages Statutes and Rules Gov. Code et seq. Mello-Roos Act California Rules of Court Rule 8.204c ii v1

9 1. INTRODUCTION Amicus curiae is Park Water Company Park Water an investor-owned water utility subject to the jurisdiction of the California Public Utilities Commission CPUC. Since 1937 Park Water has worked to provide safe reliable water service to its customers through what are now service connections provided by three water systems in the Compton/Willowbrook Lynwood/Rancho Dominguez and Bellflower/Norwalk communities of Los Angeles County. Park also wholly owns two subsidiary water utilities Apple Valley Ranchos Water Company located in Californias San Bernardino County and Mountain Water Company serving Missoula Montana. For. decades Park Water has built and maintained a first-rate water service operation within the communities it serves. From its investment in providing quality service to its customers at reasonable rates Park Water has created a valued business enterprise Given this decades-long investment and commitment to its water systems and services Park Water is concerned about the implications of the trial courts interpretation of the Mello-Roos Act Government Code et seq. the Act as authorizing the use of financing under the Act to condemn an operating public water system. H. ARGUMENT The trial courts interpretation of the Mello-Roos Act as allowing bond funding under the Act to purchase intangible property - including Golden States water rights business goodwill and other valuable assets - is contrary to the plain words of the statute and the Legislatures intent. Moreover the use of Mello-Roos Act funding to effectuate a forced acquisition by eminent domain of property and finance the resulting litigation are x1

10 not the type of expenditures - incidental or otherwise - contemplated by the Act. The trial court mistakenly allowed the will of the electorate to guide its application of the statute. Park Water urges this court to reverse that error and instead to adhere to the well-established canons of statutory construction to conclude that the Mello-Roos Act may not be used to finance the condemnation of an operating public water system. On the other hand sustaining the trial courts decision would have the effect of undermining how a business enterprise targeted for condemnation is valued. As an ongoing business enterprise Park Waters utility operation is worth much more than the simple sum of its pipes tanks and wells. This court should recognize that fact and the corollary that Mello-Roos funding is not available to acquire such intangible assets. III. CONCLUSION For the reasons above and those stated in Appellants Opening Brief Park Water respectfully requests. this court to reverse the decision of the court below. January Respectfully submitted NOSSAMAN LLP By Ma A. Mattes Attorneys for Amicus Curiae Park Water Company x1

11 RULE 8.204C1 CERTIFICATION As required by Rule 8.204c1 of the California Rules of Court I certify that this document is at 13 point font and contains 412 words. In making this certification I have relied upon the word count function of Microsoft Word the computer program used to prepare the brief. Date January NOSSAMAN LLP By Ma n A. Mattes Attorneys for Amicus Curiae Park Water Company v1

12 PROOF OF SERVICE I am a citizen of the United States over 18 years of age employed by Nossaman LLP and not a party to the subject cause. My business address is 50 California Street 34th Floor San Francisco CA On January I served the following APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT GOLDEN STATE WATER COMPANY on the parties to these actions by causing a true copy thereof to be mailed by first class mail to all parties listed on the attached service list. I declared under penalty of perjury that the foregoing is true and correct. Executed on January at San Francisco California Phan v1

13 Service List George M. Soneff Dennis Larochelle Manatt Phelps Phillips LLP Arnold Blueel LaRochelle Mathews W. Oympic Blvd 8 Fl Zirbel Los Angeles CA Esplanade Drive 2100 Oxnard CA Jeffrey M. Oderman Allen R. Ball Rutan Tucker LLP Law Office of Ball. Yorke 611 Anton Blvd Partridge Drive Suite 330 Suite 1400 Ventura CA Costa Mesa CA Ryan Blatz Ryan.Blatz Law 407 Bryant Circle Suite A2 Ojai CA v1